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No arrest in 498A IPC (women harassment) case - Matter to be referred to Family Welfare Committee

No arrest in 498A IPC (women harassment) case - Matter to be referred to Family Welfare Committee
Instead Of Scrapping 498A Of IPC, Court Allowed, Just 'No Arrest For 2 Months'

The Allahabad High Court, in a case titled Mukesh Bansal Vs State of UP and Anr, highlighted the misuse of section 498A of the Indian Penal Code and how it is affecting the traditional institution of marriage, as well as how live-in relationships, which are free of legal entanglements, are replacing traditional marriage.

Live-in relationships have quietly crept into our socio-cultural ethos, replacing traditional weddings, according to Hon'ble Justice Rahul Chaturvedi, and it is a ground truth that must be accepted.

It is a substitute for traditional marriage in which an unmarried couple lives together without marrying, free of the legal consequences, commitment, and responsibilities that come with marriage.

"In fact, this is an offshoot of traditional Indian marriage just to save the couple from the hazards and legal complications and bickering between them, The two young couples agree to have a sexual and romantic relationship. The traditional fragrance of our age-old institution of marriage would completely evaporate over a period of time if such gross and unmindful misuse of section 498-A IPC would keep on pasted rampantly," the Court said.

The High Court made these remarks while ordering a series of safeguards to avoid the abuse of Section 498A in view of the rising trend of slamming the spouse and his family with broad claims.

According to the Court's order, no arrest or coercive action shall be taken against the accused for two months following the filing of a First Information Report (FIR) under the provision, and the case should be sent to a Family Welfare Committee (FWC) during that time.

The Allahabad High Court imposed the following safeguards to avoid the abuse of Section 498A of the Indian Penal Code (IPC) in view of the rising trend of slamming the husband and his family with broad accusations:

  1. No arrest or police action to nab the named accused persons shall be made after lodging of the FIR or complaints without concluding the “Cooling Period” which is two months from the lodging of the FIR or the complaint. During this “Cooling Period”, the matter would be immediately referred to FWC in each district;

  2. Only those cases which would be transmitted to FWC in which Section 498-A IPC along with, no injury 307 and other sections of the IPC in which the imprisonment is less than 10 years;

  3. After lodging the complaint or the FIR, no action should take place without concluding the “Cooling Period” of two months. During this “Cooling Period”, the matter may be referred to Family Welfare Committee in each district;

  4. Every district shall have at least one or more FWC (depending upon the geographical size and population of that district constituted under the District Legal Aid Services Authority) comprising of at least THREE MEMBERS. Its constitution and function shall be reviewed (25) periodically by the District & Sessions Judge/Principal Judge, Family Court of that District, who shall be the Chairperson or Co-chairperson of that district at Legal Service Authority;

  5. The said FWC shall comprise the following members:

    1. a young mediator from the Mediation Centre of the district or young advocate having the practices up to five years or senior-most student of Vth year, Government Law College or the State University or NLUs having good academic track record and who is public-spirited young man, OR;

    2. well acclaimed and recognized social worker of that district having clean antecedent, OR;

    3. retired judicial officers residing in or nearby district, who can devote time for the object of the proceeding OR;

    4. educated wives of senior judicial or administrative officers of the district.

  6. The member of the FWC shall never be called as a witness;

  7. Every complaint or application under Section 498A IPC and other allied sections mentioned above, be immediately referred to Family Welfare Committee by the concerned Magistrate. After receiving the said complaint or FIR, the Committee shall summon the contesting parties along with their four senior elderly persons to have personal interaction and would try to settle down the issue/misgivings between them within two months from its lodging. The contesting parties are obliged to appear before the Committee with their four elderly persons (maximum) to have a serious deliberation between them with the aid of members of the Committee;

  8. The Committee after having proper deliberations would prepare a vivid report and would refer to the concerned Magistrate/police authorities to whom such complaints are being lodged after the expiry of two months by inserting all factual aspects and their opinion in the matter;

  9. To continue deliberation before the Committee, the police officers shall themselves avoid any arrest or any coercive action pursuant to the applications or complaint against the named accused persons. However, the Investigating Officer (IO) shall continue to have a peripheral investigation into the matter namely preparing a medical report, injury report, the statements of witnesses;

  10. The said report given by the Committee shall be under the consideration of IO or the Magistrate on its own merit and thereafter suitable action should be taken by them as per the provision of the Code of Criminal Procedure after the expiry of the “Cooling-Period” of two months;

  11. Legal Services Aid Committee shall impart such basic training as may be considered necessary to the members of the Family Welfare Committee from time to time(not more than one (26) week);

  12. Since, this is noble work to cure abrasions in a society where the tempos of the contesting parties are very high that they would mellow down the heat between them and try to resolve the misgivings and misunderstandings between them. Since this is a job for the public at large, social work, they are acting on a pro bono basis or basic minimum honorarium as fixed by the District & Sessions Judge of every district;

  13. The investigation of such FIRs or complaints containing Section 498A IPC and other allied sections as mentioned above, shall be investigated by dynamic Investigating Officers whose integrity is certified after specialized training not less than one week to handle and investigate such matrimonial cases with utmost sincerity and transparency.

  14. When settlement is reached between the parties, it would be open for the District & Sessions Judge and other senior judicial officers nominated by him in the district to dispose of the proceedings including closing of the criminal case.

Finally, the Court once again emphasized and clarified that after lodging the FIR, or the complaint case without exhausting the “Cooling Period” of two months, no arrest or any coercive action shall be taken against the husband or his family members in order to derail the proceedings before the Family Welfare Committee.


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